James Boyle: Deconstructing stupidity

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In two earlier columns on Europe’s database directive, and European public information, I pointed out that our policy-process is almost evidence-free. New rights are created on the basis of anecdote and scaremongering. There are other examples and they are not confined to Europe.

Thomas Macaulay told us copyright law is a tax on readers for the benefit of writers, a tax that shouldn’t last a day longer than necessary. What do we do? We extend the copyright term repeatedly on both sides of the Atlantic. The US goes from fourteen years to the author’s life plus seventy years. We extend protection retrospectively to dead authors, perhaps in the hope they will write from their tombs.

Since only about 4 per cent of copyrighted works more than 20 years old are commercially available, this locks up 96 per cent of 20th century culture to benefit 4 per cent. The harm to the public is huge, the benefit to authors, tiny. In any other field, the officials responsible would be fired. Not here.

It is as if we had signed an international stupidity pact, one that required us to ignore the evidence, to hand out new rights without asking for the simplest assessment of need. If the stakes were trivial, no one would care. But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science. Why are we making them?

To some the answer is obvious: corporate capture of the decision making process. This is a nicely cynical conclusion. But wait. There are economic interests on both sides. The film and music industries are tiny compared the consumer electronics industry. Yet copyright law dances to the tune played by the former, not the latter. Open source software is big business. But the international IP bureaucracies seem to view it as godless communism.

If money talks, why can decision-makers only hear one side of the conversation? Corporate capture can only be part of the explanation. Something more is needed. We need to deconstruct the culture of IP stupidity, to understand it so we can change it. But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours.

Maximalism: The first thing to realize is that many decisions are driven by honest delusion, not corporate corruption. The delusion is maximalism: the more intellectual property rights we create, the more innovation. This is clearly wrong; rights raise the cost of innovation inputs (lines of code, gene sequences, data.) Do their monopolistic and anti-competitive effects outweigh their incentive effects? That’s the central question, but many of our decision makers seem never to have thought of it.

The point was made by an exchange inside the Committee that shaped Europe’s ill-starred Database Directive. It was observed that the US, with no significant property rights over unoriginal compilations of data, had a much larger database industry than Europe which already had significant “sweat of the brow” protection in some countries. Europe has strong rights, the US weak. The US is winning.

Did this lead the committee to wonder for a moment whether Europe should weaken its rights? No. Their response was that this showed we had to make the European rights much stronger. The closed-mindedness is remarkable. “That man eats only a little salad and looks slim. Clearly to look as good as him, we have to eat twice as much, and doughnuts too!”

Authorial Romance: Part of the delusion depends on the idea that inventors and artists create from nothing. Who needs a public domain of accessible material if one can create out of thin air? But in most cases this simply isn’t true; artists, scientists and technologists build on the past. How would the blues, jazz, Elizabethan theatre, or Silicon valley have developed if they had been forced to play under today’s rules? Don’t believe me? Ask a documentary filmmaker about clearances, or a free-software developer about software patents.

An Industry Contract: Who are the subjects of IP? They used to be companies. You needed a printing press or a factory to trigger the landmines of IP. The law was set up as a contract between industry groups. This was a cosy arrangement, but it is no longer viable. The citizen-publishers of cyberspace, the makers of free software, the scientists of distributed data-analysis are all now implicated in the IP world. The decision-making structure has yet to adjust.

There are many more themes. The idea that greater control, for example, is always better (see my column on public data) or the way we only ever internationally harmonize rights upward. Fundamentally, though, the views I have criticised here are not merely stupidity. They constitute an ideology, a worldview, like flat earth-ism. But the world is not flat and the stupidity pact is not what we want to sign.

Let me be clear. IP is a good thing. (There are also important strands I have not discussed, such as natural rights and the droits d’auteur. They will get their own column.) Not all proposals to extend rights are silly, but if we do not start looking rigorously at evidence, we will never know which.

At my university, we set up The Center for the Study of the Public Domain to study the contributions of the public domain to creativity. We found we were the only such academic centre in the world. At first that made us feel innovative. Later it made us worried. If we don’t look at the evidence and we ignore the role of the public domain in fostering innovation, how can we possibly hope to make good policy?

This writer is William Neal Reynolds Professor of Law at Duke Law School, founder of the Center for the Study of the Public Domain and a board member of Creative Commons and Science Commons.